Is Joint Employment the Issue That Unites our Divided Government?Employment
I cannot recall a time when our government has been more divided across ideological and party lines. (I don’t count the early 1860s, because that’s not a time a can remember.) Thankfully, an issue has come along to build a peace bridge over the streets and through the halls of Washington D.C.
Two years ago, in Browning-Ferris, the NLRB re-wrote its long-standing rules on joint employment. It expanded and liberalized its standard for when two employers qualify as “joint employers” over a group of employees, rendering each liable for the labor-law violations of the other. It accomplished this expansion by adding “indirect” or “potential” control, in addition to “actual” control, as the lynchpin of joint employment.
A person may be considered a joint employer in relation to an employee only if such person directly, actually, and immediately, and not in a limited and routine manner, exercises significant control over the essential terms and conditions of employment (including hiring employees, discharging employees, determining individual employee rates of pay and benefits, day-to-day supervision of employees, assigning individual work schedules, positions, and tasks, and administering employee discipline).
Proponents of the bill tout its “commonsense framework” that gives “much needed clarity and certainty” to “this harmful scheme” which threatens an estimated 1.7 million jobs by holding secondary employers (such as franchisors and contractors) liable for the alleged sins of primary employers (such as franchisees and sub-contractors).
While support for this bill is not universal, if this bill can get Ds and Rs working together to solve a problem, then it must be doing something right.